Introduction:

In the UAE, Federal Decree-Law No. 41/2022 on Civil Personal Status and Abu Dhabi Law No. 14/2021 on Civil Marriage have introduced significant reforms to ensure equality between men and women, particularly in matters of child custody. This progressive legal framework guarantees that non-Muslim parents have equal rights and responsibilities in the custody of their children post-divorce. A key concern for many non-Muslim women in the UAE is understanding how child custody is handled, particularly in the event of remarriage. This article provides an overview of the relevant legal provisions and practical guidance for non-Muslim women navigating these issues. 

Joint Custody under Federal Decree-Law No. 41/2022 on Civil Personal Status:

Article 4 of Federal Decree-Law No. 41/2022 ensures equality between men and women in several areas such as testimony, inheritance, and unilateral divorce rights. Additionally, both parents have equal rights to joint custody of children until they reach 18 years old.

Article 10 of the Civil Personal Status law establishes that both parents have an equal right to custody of their children after divorce, emphasizing shared responsibility to ensure the psychological well-being of the children and minimize the negative impacts of divorce. Parents can apply to the court to grant custody to the parent best suited to the child's interests, or one parent may waive their custody rights. Either parent can request the court to exclude the other from joint custody for valid reasons, such as eligibility issues or failure to perform duties. In case of disagreements on custody matters, either parent can petition the court to intervene and resolve the dispute. The court has the discretion to decide in the child's best interest based on parental requests post-divorce.

Additionally, Cabinet Decision No. 122/2023 on the Implementing Regulation of Federal Decree-Law No. 41/2022 on the Civil Personal Status Law, under Articles 13-23, elaborates on the procedure of joint custody, emphasizing the shared responsibility of parents’ post-divorce to support the child's psychological well-being. Joint custody is the default unless one parent is deemed unfit or poses a risk to the child; parents can seek court intervention to resolve custody disputes, ensuring decisions are made in the child's best interests. The court determines how custody is divided (weekly, semi-monthly, monthly) based on the child's best interests. Parents can request to waive joint custody, though waiving custody does not exempt financial obligations towards the child. Either parent can request the removal of the other from joint custody, leading the court to schedule a hearing and potentially temporarily suspend custody or assign a social expert.

Regarding the travel and visitation of the children, neither parent can unilaterally make decisions that might impact the child's stability or well-being. Parents can agree on visitation terms with mutual agreement; otherwise, the court determines them. The court may stop visitation if it's in the child's best interest. The court can amend visitation terms based on requests or the child's best interest.

Cases of Removal of the Joint Custodian: According to Article 18 of Cabinet Decision No. 122/2023, the court may remove a parent from custody for various reasons, including the risk of domestic violence or abuse, inadequate living conditions, behavioural or psychological issues, failure to perform custody duties, criminal convictions affecting custody ability, substance abuse, health issues, the child's preference at age 18, or any other reason deemed necessary by the court. Therefore, a non-Muslim woman considering remarriage post-divorce may find it a valid ground for one parent to seek the removal of the other from joint custody, provided it serves the child's best interests. However, if both parents mutually agree that the mother should retain custody after her remarriage, the court may consider this agreement. In the absence of such a mutual agreement, the court's decision will rest on several factors, such as domestic violence, neglect, living conditions, or any behavioural or psychological issues arising from the new marital relationship that might harm the child.

Joint Custody under Abu Dhabi Law No. 14/2021 on Civil Marriage:

The Abu Dhabi civil marriage law strengthens the principles of Federal Decree-Law No. 41/2022, ensuring joint custody as a right for both parents post-divorce. Children have the right to be raised and seen by both parents to safeguard their mental health and limit the impact of divorce. Both parents share responsibility for upbringing unless one waives their right of custody or seeks the court's intervention to remove the other from joint custody for valid reasons. In case of disagreements, either parent may object or seek court intervention. The court may automatically grant joint custody in divorce rulings. Either parent can object to this ruling with justifications. If parents cannot agree on the division of custody, the court determines the split (weekly, bi-monthly, or monthly) based on the child's best interests.

Waiving custody does not exempt financial obligations. If both parents refuse custody, the court notifies the Public Prosecution. Requests for removal from joint custody lead to a hearing that may involve temporary suspension or the assignment of a social expert. Reasons for removal include domestic violence, inadequate living conditions, health issues, or remarriage. The court prioritizes the child's best interests when cancelling joint custody, applying principles of justice and international best practices.

Regarding the travel and visitation of the children, neither parent can unilaterally make decisions that might impact the child's stability or well-being. Parents can agree on visitation terms; otherwise, the court determines them. The court may stop visitation if it's in the child's best interest. The court can amend visitation terms based on requests or the child's best interest.

Conclusion:

Federal Decree-Law No. 41/2022 and Abu Dhabi Law No. 14/2021 mark a significant step towards gender equality in the UAE, particularly in child custody. Non-Muslim women, upon divorce and potential remarriage, can rest assured that the law provides a balanced and fair framework to safeguard their rights and the best interests of their children. By understanding these legal provisions and seeking appropriate guidance, non-Muslim women can navigate child custody issues more effectively.